Wednesday, November 12, 2014
Professor Reid Weisbord at Rutgers Law School - Newark has a new essay that takes on a challenging, two-part question: Whether a donor's estate should be permitted to sell a decedent's body parts or organs posthumously and whether the proceeds of such sales will be distributed to the donor's heirs or beneficiaries. Professor Reid suggests an appropriate starting place is to define and provide for "anatomical intent" of the donor. Before you start imagining vendors on Craigslist or at Sothebys, be advised the essay anticipates a regulated system.
You probably want to read more about this topic, correct? See "Anatomical Intent" by Reed Weisbord from the November issue of Yale Law Review Forum.
Tuesday, November 11, 2014
Penn State Dickinson Law's Registrar, Pam Knowlton, has a not-so-secret life as seamstress, trainer and godmother to several of the most patient dogs on earth. Newman, Thelma and Roger will be hard at work again on Veterans' Day, with scheduled visits at nursing homes and care centers around the mid state. It is pretty much impossible not to smile when these therapy dogs report for duty.
Roger, a French bulldog, apparently has combat training too. Newman, the boxer, has his own blog....
The October 2014 issue of the American Bar Association's Health Law Section publication, The Health Lawyer, has an interesting lead essay, one that I believe would be useful both for practitioners and law students to read. D. Gary Reed, Associate General Counsel for Humana Inc., argues that there are two distinctly different versions of the Medicare Advantage program of health coverage, the version he believes was intended by Congress and the version "found in pleadings, briefs and court decisions."
Attorney Reed starts with a concise statutory overview of coverage under Medicare Part C, leading to introduction of his central thesis: "Litigants and courts too often depend on prior case law for their understanding of the Medicare statute, rather than on the statute itself."
Reed writes clearly and offers helpful citations. He points out that the Medicare statute is, at best, intimidating to the "uninitiated" and the confusion is made worse by inconsistent use of citations to provisions of the legislative Act, rather than to the United States Code.
He offers an "ABCs of Medicare" followed by a more detailed examination of the subparts of Part C, and describes what it means to "opt out." He outlines his approach to how the Medicare Advantage program is intended to function, using examples to show how he believes courts have gotten it wrong. He argues there is "no such thing as a Medicare Advantage insurance policy." The misconception that there is a "policy," he says, "lulls general practitioners and provider collection counsel into suing for breach of the nonexistent Medicare Advantage insurance policy, instead of pursing the exclusive Medicare appeals process."
Reed contends that "[t]ime and money spent by Medicare Advantage organizations defending litigation driven by these misconceptions diverts resources from caring for aged and disabled Medicare beneficiaries." He says "a contributing factor may be the dearth of authoritative materials -- text books, law review articles, or the like -- that explain and contextualize the program in readily understandable terms."
After reading the article, I ask whether a fair implication arises from the apparently significant numbers of claims being made, even if incorrectly and in the wrong forum. Doesn't that suggest there could be real problems with Medicare Advantage? Reed writes that it is important to understand, and to use available statistics to demonstrate, that "the Medicare appeals process exists and is actually available to Medicare Advantage enrollees." But is Medicare Advantage meeting the real needs of health care service users in this program?
Monday, November 10, 2014
Professor Raymond O'Brien, Catholic University Law, and Associate Dean Michael Flannery, University of Arkansas, Little Rock, have collaborated on the latest new classroom text to hit my desk. Published by Foundation Press, "The Fundamentals of Elder Law: Cases and Materials" includes chapters on:
- Elder Estate Planning
- Transfer of Wealth
- Incapacity: Utilization of Powers and Surrogates
- Health Care Decisions
- Social Security, Veterans and Railroad Benefits
- Elder Housing Options
- Payment Options for Elder Housing
- Discrimination and Abuse
Plus, the authors have included text from several key uniform laws as appendices in their book, thus reducing student costs to purchase expensive supllements. I especially appreciate their inclusion of the Uniform Power of Attorney Act, given recent state legislative efforts to provide safeguards connected to use of POAs.By the way, I tried to link to this textbook on the West Academic website here. No luck with searches by author or subject. Is the book too new for the publishers to list? (I've had similar problems before with other title searches on the website, which strikes me as a problem; hopefully one that can be fixed.)
The Demand Institute released a new report on Boomers and housing. The Institute, according to its mission, "illuminates the way in which consumer demand is evolving around the world. We help government and business leaders align investments with where consumer demand is headed across industries, countries and markets. The Demand Institute is a non-advocacy, non-profit organization and a division of The Conference Board... [and] is jointly operated by The Conference Board and Nielsen."
The report, Baby Boomers & Their Homes: On Their Own Terms notes that Boomers will be responsible for 25% of dollars spent on rent or home buying over the next 5 years. According to the report, expect the Boomers to break the mold of retirement housing of that past. The report states that "[m]ost [Boomers] plan to age in place, but many will move into larger homes and take out new mortgages to do so." In the survey done by the Demand Institute, "more than 4,000 Baby Boomer households... [were asked] about their current living situation, moving intentions, and housing preferences, as a part of a broader initiative to understand where future home and community demand is headed." So what is expected to occur in the next 5 years? A large amount of spending, according to the study: "Boomers will spend $1.9 trillion on new home purchases and $500 billion on rent in the next five years." (yes, that says trillion and billion). The study also examines the Boomers retirement readiness, the desire to age in place (most because that is their preference, bur for others, due to a lack of choice primarily fueled by financial limitations). Despite their desire to age in place, according to the report, there is a disconnect between desire and reality: "Boomers are planning major home improvements in the next three years, a significant number will make style and value a priority over aging-friendly features. In fact, the top Boomer reasons to renovate are similar to those of younger generations" which include increasing energy efficiency or home values, and updating the home. The article has great charts and statistics, covers downsizing and upsizing, and desired location. For those of us living in Florida, the stats regarding our future snowbirds are not the best. The report indicates that of the Boomers surveyed, only 1/3 want to move out of state and only 20% want to live in "senior-related housing or active adult communities." Thinking about the Boomers retirement readiness and income security, this part of the report is a bit of a concern "[w]hen they purchase their next homes, more than half [of Boomers] will seek mortgage financing to do so. And most are confident in their ability to qualify for financing."
Sunday, November 9, 2014
On November 5, Genworth Financial Inc., a major player in long-term care insurance, announced third-quarter 2014 performance results, reporting a $844 million net loss that flowed from review of the company's long-term care claims. The review required the company to reallocate more than $530 million (pre-tax) to its LTC claim reserves. Obviously that is not the kind of news that shareholders like to hear. But, it would also appear to hold larger implications.
Financial news reporters quickly followed with analysis.
From the Wall Street Journal: "Long-Term-Care Insurance: What Policyholders Should Know," three "takeaways:"
- "A past rate increase doesn't forestall additional hikes down the road."
- "You're unlikely to find a better deal by switching insurers.
- "It may be possible to cut back benefits and still have good coverage."
From Bloomberg News: "Genworth CEO Sees Tough Turnaround from $844 Million Loss," putting the single company's performance into context by pointing out that "larger rivals MetLife Inc. and Prudential Financial Inc. have stopped selling long-term care insurance as results are hurt by near record-low bond yields and higher-than expected claims costs."
Underestimating how long people will live. Underestimating the demand for assistance with activites of daily living. Underestimating how much it costs to cover health care and social care meeds. These are calculation problems not just for the insurance companies but for individuals, families and (if we are at all realistic) governments. Don't we need to stop addressing these issues in silos?
Friday, November 7, 2014
Two challenging topics for many families: how to handle death and intimacy for aging family members. We're probably doing better coming to grips with the need to address death than intimacy. When long-term care is required, involving third-parties, the question of sexual behavior can become more important.
Along that line, Bryan Gruley at Bloomberg News wrote a thoughtful series addressing the social, legal, moral -- and just plain tough -- questions connected to sexual behavior that can arise with older persons in congregate settings.
Bloomberg Visual Data: Elder Care Sex Survey Finds Caregiviers Seeking More Training
The Bloomberg series quotes Albany Law School Professor Evelyn Tenenbaum, a civil rights, health care, and bioethics scholar, citing her article "To Be or to Exist: Standards for Deciding Whether Dementia Patients in Nursing Homes Should Engage in Intimacy, Sex and Adultery" from the Indiana Law Review.
November 7, 2014 in Cognitive Impairment, Current Affairs, Dementia/Alzheimer’s, Elder Abuse/Guardianship/Conservatorship, Ethical Issues, Health Care/Long Term Care | Permalink | Comments (0) | TrackBack (0)
Thursday, November 6, 2014
My co-blogger, Professor Pearson wrote a post about the silver housing concept published in a recent issue of the New York Times. One of my elder law rock star students, Sushil Cheema, sent me an article from the Wall Street Journal on another story about housing: the mother-in-law apartment.
When I moved to Florida eons ago (or as I like to remind my JD students, last century), one would often see ads describing the perks of houses listed for sale as including a mother-in-law apartment (and it seems to my vague recollection, those were often over a garage...) St. Petersburg is a vibrant, happening place to live. I haven't had a need to be checking the housing market, so I don't know whether houses with these added apartments are still listing them as "mother-in-law" apartments.
But, the phrase isn't evidently as dated as I thought it was. According to the Wall Street Journal article, The Hottest Home Amenity: In-Law Apartments
the hottest amenity in real estate these days is an in-law unit, an apartment carved out of an existing home or a stand-alone dwelling built on the homeowners’ property. While the adult children get the peace of mind of having mom and dad nearby, real-estate agents say the in-law accommodations are adding value to their homes.
Accessory-dwelling units (the more popular term these days) can make a huge difference in the popularity and price of a property. The article mentions trends by home builders, including the addition of a "casita" on the property, or properties designed for multi-generational families, such as "MultiGen dwellings" or "NextGen" dwellings. Regardless of what you call it, dwelling space for the family matriarch or patriarch is the hot topic. "Architects also cite an uptick in requests for in-law units. “We hardly ever do a house anymore that doesn’t have multiple buildings,” often as dwellings for aging parents, said Michael Frederick, an architect in Beaufort, S.C."
As those of us who teach elder law know, multiple dwellings on a property may run afoul of zoning ordinances, especially those zoned single family, or those with homeowners associations. The article recognizes this issue, too. "Until recently, homeowners in many areas weren’t able to build in-law units on their properties because of local regulations that made them either illegal or too complex to build. But efforts by lobbying groups like AARP and individuals like Portland-based ADU blogger and educator Kol Peterson have led to loosened rules in some areas, advocates say."
Of course, the regulations governing and the cost of building aren't the only issues. As mentioned in the article, there are intrinsic and emotional issues to be covered. This is a great overview of the housing issues and I think useful in our classes to engender stimulating discussion.
Dr. Louise Aronson, a clinical professor in Geriatrics at University of California San Francisco, wrote a great piece in the New York Times recently, calling for a "silver" standard for architecture and design, to better meet the needs of older adults in public and private accommodations, while also making life easier and safer for everyone. She explains:
"I unloaded the walker and led my 82-year-old father through the sliding glass doors. Inside, there was a single bench made of recycled materials. I noticed it didn’t have the arm supports that a frail elderly person requires to safely sit down and get back up. It was a long trek to the right clinic and I was double-parked outside. Helping my father onto the bench, I said, “Wait here,” and hoped he would remember to do so long enough for me to park and return.
He nodded. We were used to this. It happened almost everywhere we went: at restaurants, the bank, the airport, department stores. Many of these places — our historic city hall, with its wide steps and renovated dome, the futuristic movie theater and the new clinic — were gorgeous.
The problem was that not one of them was set up to facilitate access by someone like my father."
The irony was that the medical center building Dr. Aronson was writing about was brand new and renowned for its "green" design. Nonetheless, it was failing to meet the practical needs of its many silver-haired clients.
For more on how a revolution -- and incentives -- are needed to better meet the needs of an aging world, see "New Buildings for Older People."
Wednesday, November 5, 2014
I recently read an HHS Inspector General report about Medicare paying for HIV drugs ... for the dead....The OIG report, Medicare Paid for HIV Drugs for Deceased Beneficiaries, released on Halloween (shades of trick or treat), is available here as a pdf.
OIG report # OEI-02-11-00172 focuses on HIV drugs and the prompt for the investigation was "ongoing concerns about Medicare paying for drugs and services after a beneficiary has died."
The report found that under the existing policy (which allows this to occur), Medicare continued to pay for HIV drugs for 150 decedents. Medicare cuts off payments "for drugs with dates of service more than 32 days after death [because] CMS's practices allow payment for drugs that do not meet Medicare Part D coverage requirements. Most of these drugs were dispensed by retail pharmacies."
Why just look at HIV drugs because isn't it likely that this continued payment could be occurring beyond just this group of drugs? CMS agrees that "these "findings have implications for all drugs because Medicare processes PDE records for all drugs the same way. Considering the enormous number of Part D drugs, a change in practice would affect all Part D drugs and could result in significant cost savings for the program and for taxpayers."
The OIG report recommends a change in practice to "prevent inappropriate payments for drugs for deceased beneficiaries and lead to cost savings for the program and for taxpayers. CMS concurred with [the OIG] recommendation."
One of the more positive developments is how many people are devotees of yoga. I was interested to see a D.C. Bar advertisement for "Cultivating Contentment with Yoga: Living and Lawyering Series." At the same time I was amused when I read that following the yoga session there would be an "active discussion on the presented topic." Lawyers.... we can't stop talking can we?
I'm happy to report that at my own law school, a couple of years ago our dean (yes, Dean Gildin -- he's a devotee!) added yoga to our on-campus opportunities. Students, faculty, staff and even family members are welcome. A great way to help all of us strive for balance, at every age. In fair weather the sessions are on the lawn; when it gets cold or wet everyone moves into our courtroom.
Sadly, however, neither the D.C. Bar nor our law school gives educational "credits" for the sessions. Remember, virtue is its own reward.
Kurzweil Accelerating Intelligence (Kurzweil AI) reported in their October 21, 2014 news a story on new research, Hidden brain signatures’ of consciousness in vegetative state patients discovered. Here’s the opening paragraph “Scientists in Cambridge, England have found hidden signatures in the brains of people in a vegetative state that point to networks that could support consciousness — even when a patient appears to be unconscious and unresponsive. The study could help doctors identify patients who are aware despite being unable to communicate.”
The Kurzweil AI story includes the article’s abstract a segment of which we’ve included here
Going further, we found that metrics of alpha network efficiency also correlated with the degree of behavioural awareness. Intriguingly, some patients in behaviourally unresponsive vegetative states who demonstrated evidence of covert awareness with functional neuroimaging stood out from this trend: they had alpha networks that were remarkably well preserved and similar to those observed in the controls. Taken together, our findings inform current understanding of disorders of consciousness by highlighting the distinctive brain networks that characterise them. In the significant minority of vegetative patients who follow commands in neuroimaging tests, they point to putative network mechanisms that could support cognitive function and consciousness despite profound behavioural impairment.
Consider how these findings may be introduced in litigation where the patient is diagnosed as PVS, with one party seeking to have life-prolonging procedures removed and another objecting and seeking this test for the patient. Should we take this and other medical advances into consideration when drafting advance directives, especially instructions to our health care agents?
Tuesday, November 4, 2014
Yesterday, Tom Magliozzi, half of the Click and Clack duo of "car experts" on the long-running NPR radio show, passed away. I'm a fan of brothers Tom and Ray and their eclectic advice. I have a particular affection for Tommy's rowdy laugh -- that would start me grinning before I even heard the joke. It was sad news, especially as each of the stories I saw carried the report that his death was "from complications of Alzheimer's Disease."
Those five words imply so much, including the sadness, confusion and difficulties that may have attended the two years after he and his brother stopped broadcasting the weekly show. But, I also cannot help thinking that here was a man with "a full life, well lived." And one who's laugh will be missed by many.
Tommorow we have respite, for at least a few months, from the barrage of political ads. In the meantime, I have to say that this season there seems to be an exceptionally high number of television ads involving the candidates' own family members, and the older the better, it seems.
Former President Jimmy Carter, age 90, has been campaigning across Georgia on behalf of his grandson Jason. In Pennsylvania, one governor candidate has his mother on commercials and appearing at campaign stops, explaining how her son knows the importance of protecting seniors. In Maryland, a judicial candidate for a probate court position, explains that he decided to run after "caring for several elderly family members for several years." Perhaps you have examples from your state?
It could be that such a strategy reflects a hard truth, that younger voters are largely alienated by the current political scene and unlikely to vote. A core community of potential voters? Those age 60+.
November 7, Election Post Script: Jimmy Carter's son Jason was defeated in his campaign for governor of Georgia. Tom Wolf's mother joined in the celebration of her son's election to governor of Pennsylvania. Thomas Walsh was defeated in his general election bid to retain his seat as an Orphans Court Judge in Maryland. Older relatives are not, it seems, a magic bullit for candidates.
Who amongst us has not heard of the Jimmo case? You know that case---where Vermont Legal Aid and the Center for Medicare Advocacy (full disclosure-I'm on their board), sued CMS over the improvement standard (which isn't a requirement for Medicare). Well, the plaintiffs were victororiou and CMS amended the manuals.... more details and a host of articles about the Jimmo settlement and what it means for clients is available on the CMA website.
But did you ever think about outcome for the plaintiff, Ms. Jimmo? Guess what, she didn't get benefits as part of the settlement...in fact, she had to apply again with CMS for her benefits, and she has finally prevailed!
Susan Jaffe reported in Disabled Vt. Senior Wins Medicare Coverage After 2nd Lawsuit that CMS has finally awarded Ms. Jimmo benefits. The story explains that after the first lawsuit, she applied for benefits and was denied. Thus starts round two. Denied in April, she sues in June and now it is the end of October, 2014. Ms. Jimmo "argued [in her second suit that] Medicare should have paid for the nursing care and other skilled services she received at her home during 2007. On Wednesday, [October 29, 2014] Medicare officials agreed, invalidating an April ruling that she was not entitled to coverage because her condition had stabilized and she was not improving."
Although CMS officials didn't comment for the story, the article contains this "Medicare officials agreed Wednesday that the Medicare Appeals Council’s denial “shall have no remaining force or effect.” Medicare will now pay Jimmo’s home health agency nearly $12,000, as well as her attorney fees." My favorite part of the story (other than the ending) is this from Judy Stein, executive director of the CMA:
“This should give hope to other people who are going through the Medicare appeals process,” said Judith Stein, executive director of the Center for Medicare Advocacy, which filed the original class action lawsuit with Vermont Legal Aid and negotiated both settlements. “It’s helpful to know that people will get a fair shot for an appeal because if Mrs. Jimmo couldn’t, who could?”
Good news for today!
Monday, November 3, 2014
The Ohio Court of Appeals, relying on a Sixth Circuit decision that interpreted Ohio law in Hughes v. McCarthy (2013), has now determined that a wife's purchase of an annuity with funds in excess of her community spouse resource allowance after her husband's admission to a nursing home, was not an improper transfer. The court's ruling permits her husband to qualify for Medicaid coverage for his long-term care without any penalty period.
A key to the court's October 22 ruling in Koenig v. Dungey, 2014 WL 5361644, was recognition that use of $121k of "joint funds" to purchase a five-year, actuarially sound spousal annuity was permitted by the language of federal laws, when the "transfer occurred after institutionalization but preeligibility."
In part, the attempts by some states to block use of annuities to convert at least a portion of marital assets into exempt spousal income, depends on states that have adopted tighter language than the federal law. Along that line, Pennsylvania attorney Kemp Scales shared with me potentially relevant language from the U.S. Supreme Court, when construing the purported effect of one state's attempt to capture proceeds of a tort recovery in order to reimburse the state for its expenditures under Medicaid. In Wos v. E.M.A., 133 S.Ct. 1391, 1400 (2013), the Court rejected application of a state lien, noting the conflict with federal law:
"A [particular state] statute that singles out Medicaid beneficiaries in this manner cannot avoid compliance with the federal anti-lien provision merely by relying upon a connection to an area of traditional state regulation."
In September, a federal district court judge in the case of Wagner v. McCarthy, pending in the Southern district of Ohio, granted preliminary injunctive relief favoring community spouses and prohibited state officials from imposing penalties "due to the transfer of community resources to purchase an actuarily sound anuity for the sole benefit of thier respective community spouse." In granting the injunction, the judge observed "there is little doubt that Plaintiffs will succeed on the merits," citing Hughes v. McCarthy.
In August, a somewhat more complicated Medicaid planning case, involving one spouse's transfer and sale of the couple's home, was argued before the Ohio Supreme Court and in an earlier Elder Law Prof Blog post we linked to the court's recording of the argument. A decision on that case, Estate of Atkinson, is still pending.
While I was in California last summer, a friend introduced me to Lillian Hyatt. I had already known of her by reputation and it was a real pleasure to speak to her in person and to continue our communications by telephone and mail. She's a dynamo, a person who does not take aging "lying down." Born in 1925 (believe me, she doesn't mind me disclosing that fact!), Lillian Hyatt is just about as active in "retirement" as she was during her many years as a writer, consultant, advocate, social worker, and university professor.
So I was especially interested to notice that when I clicked on a hyperlink embedded in a recent New York Times article about the impact of "falling" in an "aging nation," it took me to a press release about Lillian Hyatt. Back in 2008, Ms. Hyatt filed suit against a California Continuing Care Retirement Community (CCRC), to prevent it from banning walkers from the dining room of this high-end retirement community. She needed the walker to maneuver in what was, in essence, her home.
The lawsuit, asserting violation of the federal Fair Housing Act and other state and federal laws that address discrimination based on disability, was settled in 2010. Others have pursued similar claims in assisted living settings, public spaces and more. For more on the continuing impact of Ms. Hyatt's advocacy -- even though, curiously, she is never mentioned by name in the NYT article -- read "Bracing for the Falls of an Aging Nation." Advocates such as Ms. Hyatt challenge all of us to work harder to find a better balance between protection and respect for independence.
Sunday, November 2, 2014
Start your week with a laugh, or at least a smile.
One of the many blogs I read, GeriPal, ran an excellent parody for Halloween that had me howling....with laughter at the author's cleverness. Addressing Unmet Palliative and Geriatric Needs of Zombies is a hysterical must-read. The title gives you an excellent preview. And don't ignore the links in the article to the other sources, especially the one regarding the speed with which the Grim Reaper walks (at least the section on strengths and limitations).
Joe is now "Dr. Joe Duffy," having completed his PhD earlier this year. Pictured on the left, he also traveled to Liverpool in October to receive an all-U.K. national teaching fellowship award from the Higher Education Academy.
Joe's work is fascinating, using his many years of practical experience in social work to inform his academic writing on the importance of involving service users and caregivers directly in design of new systems for social care and social justice. His work also spans age groups, employing the same respect with all individuals, from youth to older adults, with recent articles on post-conflict change in Northern Ireland, palliative care, child protection and international human rights.
Congratulations, Joe, for your most recent honors -- so well deserved!
Catherine "Kitty" Haughey passed away in 2004, a widow without children of her own. Her godson lived with her the last two years of her life in County Armagh in Northern Ireland. She was leaving behind the lovely sounding "Annie's Cottage" and Larkin's, a family pub, along with a substantial sum of cash. Directions for distribution of her property were contained in a will dated two weeks before her death.
Ten years later, her godson has pled guilty to forgery of that will, although still trying to rationalize his actions by saying the new document that gave him the house and pub "reflected her dying wishes." He was finally compelled to concede he'd gone about "changing the will in the wrong way."
Indeed he did, with help in drafting and "witnessing" the will coming from a surveyor and a local doctor, both of whom earlier pled guilty to assisting in the forgery. They received suspended sentences.
The 53-year-old "godson," Francis Tiernan, tried to avoid prosecution in Northern Ireland by fleeing the court's jurisdiction and fighting extradition after he was discovered in the south of Ireland. His prison sentence is three years.
The actual will, dated 2003, had left Tiernan just £1000, while the reported value of the property was more than £1,000,000. An autopsy was performed following exhumation of Kitty Haughey's body, showing she died of natural causes. Her death came close in time to those of her only two siblings.
Hat tip to Dr. Joe Duffy of Queen's University Belfast for sending me this story. For another tale of misuse of legal documents to gain control over a pub in Ireland, see "The Lesson of the Irish Family Pub" that I wrote for Stetson Law Review in 2010. That time the "help" came from a lawyer who contended he was representing the "family" in preparing deeds. For more on Francis Tiernan's woes and indications of his colorful past, see links below.